Law and Politics Commons^™

The Perils And Possibilities Of Refugee Federalism, Burch Elias

American University Law Review

No abstract provided.

Book Review: Foreign Affairs And The Constitution. By Louis Henkin. Mineola, N.Y.: The Foundation Press, 1972. Pp. 553. $11.50., Carl Marcy

Georgia Journal of International & Comparative Law

No abstract provided.

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

Clean Energy Federalism, Felix Mormann

Faculty Scholarship

Legal scholarship tends to approach the law and policy of clean energy from an environmental law perspective. As hydraulic fracturing, renewable energy integration, nuclear reactor (re)licensing, transport biofuel mandates, and other energy issues have pushed to the forefront of the environmental law debate, clean energy law has begun to emancipate itself. The emerging literature on clean energy federalism is a symptom of this emancipation. This Article adds to that literature by offering two case studies, a novel model for policy integration, and theoretical insights to elucidate the relationship between environmental federalism and clean energy federalism.

Renewable portfolio standards and feed-in …

House Of Cards: How Rediscovering Republicanism Brings It Crashing Down, Jonathan E. Maddison

Catholic University Law Review

Using Frank Underwood’s maniacal political journey in the Netflix series House of Cards as an example of what is wrong with American politics, this article argues that the Supreme Court’s misapplication of First Amendment principles in Citizens United and other key campaign finance cases plays a large and problematic role. Providing an extensive historical overview of republicanism and First Amendment jurisprudence, this article suggests that a return to republican ideals, while not perfect, is both the solution and proper tool of analysis to be used by the Supreme Court for campaign finance cases and beyond.

The Narrowing Of Federal Power By The American Political Capital, David Fontana

William & Mary Bill of Rights Journal

This Essay--—prepared for a symposium hosted by the William & Mary Bill of Rights Journal on the future of the District of Columbia--—argues that American federal power can be better understood by considering the features of the metropolitan area that houses the most important parts of the American federal government. In other American metropolitan areas and in most capital metropolitan areas elsewhere in the world, local life features multiple and diverse industries. Washington is the metropolitan area that houses the most important parts of the American federal government, and Washington is dominated by the government and related industries. Washington is, …

Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin

Montana Law Review

No abstract provided.

Towards A Universal Field Theory Of National Private Rights And Federalism, Roderick M. Hills Jr.

Montana Law Review

No abstract provided.

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to …

California's Foreign Relations, Christopher Gaarder

CMC Senior Theses

Globalization has significantly increased the number of stakeholders in transnational issues in recent decades. The typical list of the new players in global affairs often includes non-state actors like non-governmental organizations, multinational corporations, and international organizations. Sub-national governments, however, have been given relatively little attention even though they, too, have a significant interest and ability to shape the increasing flow of capital, goods, services, people, and ideas that has so profoundly influenced the global political economy in recent decades. California, arguably the most significant among sub-national governments – its economy would be seventh or eighth in the world at $2.2 …

The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt

Michigan Law Review

For decades, we have debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state–federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don’t exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism. If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This article asks what the U.S. Supreme Court’s opinion in United States v. Windsorstands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism reasoning and rhetoric—like declining to …

Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …

From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. …

Not The Power To Destroy: An Effects Theory Of The Tax Power, Robert D. Cooter, Neil S. Siegel

Faculty Scholarship

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection and …

Foreword, Antonin Scalia

Pepperdine Law Review

No abstract provided.

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.

Federalism: Theory, Policy, Law, Daniel Halberstam

Book Chapters

Even France now values local government. Over the past 30 years, top-down appointment of regional prefects and local administrators has given way to regionally elected councils and a revision of Article 1 of the French Constitution, which proclaims that today the state’s ‘organization is decentralized’. The British Parliament, too, has embraced local rule by devolving powers to Scotland, Wales, and Northern Ireland. And in China, decentralization has reached a point where some scholars speak of ‘de facto federalism’. A systematic study of the distribution of authority in 42 democracies found that over the past 50 years, regional authority grew in …

Depoliticizing Federalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine …

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S 'Harm Principle,' And American Social Morality, Jedediah S. Britton-Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, we show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Collective Action Federalism: A General Theory Of Article I, Section 8, Robert D. Cooter, Neil S. Siegel

Faculty Scholarship

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own.

Subsequent interpretations of Section …

Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller

Indiana Law Journal

This Article examines Justice Ginsburg's overlooked federalism jurisprudence and concludes that it almost perfectly complements President Bill Clinton's New Democratic centrism, especially his pro-state federalism agenda. The Article concludes that their nuanced, "centrist" approach to federalism has two characteristics. First,t hey value the states 'governing autonomy and show respect for the state agents that realize that autonomy. Second, they credit the states as intersubjective actors engaged in the pursuit of their interests, albeit in political processes usually carried out at the federal level.

Comparative Federalism And The Role Of Judiciary, Daniel Halberstam

Book Chapters

The distinctive feature of federalism is to locate the central and constituent governments' respective claims of organizational autonomy and jurisdictional authority within a set of privileged legal norms that are beyond the arena of daily politics. For the most part, the debate about the role of the judiciary as federal umpire has taken place within two separate disciplinary compartments: comparative politics and law. Building on recent e��orts to bring these two disciplines closer, this article provides a fresh look at three common criticisms of granting the central judiciary power to protect federalism. It argues that political safeguards of federalism are …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa A. Baird

Faculty Articles

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed …

Forum Shopping And The Infrastructure Of Federalism., James E. Pfander

Faculty Working Papers

The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and …

Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun

Michigan Law Review First Impressions

The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

International Delegations And The Values Of Federalism, Neil S. Siegel

Faculty Scholarship

Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in …

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf

Cornell Law Faculty Publications

Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold …